Checks and balances in democracies other than the United States

Factual Questions
21

If I understand that principle correctly, it’s a judicial interpretation of the Constitution, rather than an express constitutional provision?

I don’t think that can be characterized as unique to India, since it came out of decisions in the Supreme Court of India in the 1960’s. The Basic Law of West Germany, adopted in 1949 (and now applying to all of Germany), has an express provision that certain aspects of the constitutional structure could not be amended. Article 79 sets out the process for amendments, but Article 79(3) puts a limitation on the amending power:

Thus, the federal structure of Germany, the right of the Länder to participate in federal legislation via the upper house, and the rights of individuals set out in the first 20 articles, cannot be altered by amendments under article 79.

22

Like other parliamentary country, Japan has a Prime Minister elected by the legislature. In their case it’s the the Lower House. They also have an elected Upper House, which may have another political party with the majority.

23

No. The ISC had held that certain aspects of the constitution the so called “basic structure” cannot be changed by a constitutional amendment. This despite the fact that there was no such bar in the text of the Indian constitution.

24

I think that’s what I said. i was responding to Really Not All That Bright’s suggestion that the principle that basic structure cannot be amended was unique to India, then adopted by Bangladesh.

But it is not set out in the Indian Constitution, only implemented by judicial interpretation in the 1960s. The provision of the Basic Law of West Germany, similarly making the basic structure of the Basic Law unamendable, was enacted in 1949, some 15 years before the ISC ruled on the matter.

The idea that some parts of the Constitution are so fundamental that they cannot be amended was thus not unique to India. West Germany had expressly adopted that approach some fifteen years before.

25

The US system is perhaps unusual in that it was designed. Most of us live in systems that have evolved over time and accreted checks and balances piecemeal.

Here in Oz, the Westminster system exists in its colonial form, much like Canada. And the nature of checks and balances is similarly not fully codified. History contains a few examples where the limits were tested. In OZ perhaps the most famous is the attempt by the then government to dissolve the Communist Party of Australia.

But the role of the Prime Minister is that strange amalgam of powers of executive power serving only at the pleasure of the Governor General (acting as the monarch’s representative). And that service being dependant upon being able to maintain the confidence of the parliament. So a PM subject to a successful motion of no-confidence may be dismissed by the GG, who will then seek another member of parliament who can demonstrate they he holds the confidence of the parliament. In practice this has meant that a party room attack by the incumbent caucus can remove a PM and install a new one. Something that has become a bit of a regular occurrence, when once it was essentially unthinkable.

So the checks and balances are - High Court of Australia can rule on constitutionality of laws. The Senate can vote down passage of a law from the lower house, but a second refusal provides the PM with the right to call a double dissolution of parliament. Again something that has become more common than one might have expected. In principle the GG has the right to dismiss an incumbent government. The 1975 dismissal was of a PM and his government on the basis that it could no longer run the country. The PM still had the confidence of the parliament. This is a constitutional problem (crisis) in that the constitution holds no provision for this circumstance, and the legal arguments rage decades later. The GG provided a check/balance, but not one that was codified anywhere, and he did so on the basis of a range of advice sought. The ironic point of the dismissal was that the GG was previously a member of the party he dismissed from government, and had been appointed to the position (by the monarch) on the advice of the PM he dismissed.

High court judges are similarly appointed by the GG on advice from the incumbent government.

Perhaps the critical difference is that our GG is appointed by the monarch on the advice of the PM, and is expected to perform on the advice of the PM. Much as the monarch of the UK does. The GG is not elected and has no popular mandate. Thus their role is limited and is expected to not involve any political nature, and save times of constitutional crisis, mechanical in operation. The POTUS has a popular mandate, and has executive powers that stem from it, in addition to the core constitutional powers to appoint and dismiss the executive. Our GG has the power to appoint the executive as well, but again, only on the advice of the PM. (A GG with a popular mandate would be a highly dangerous thing. We would be entering uncharted waters.)

26

Everyone is forgetting the situation when Pierre Trudeau decided his legacy would be to bring home the British North America Act and create a made-in-Canada constitution. Pierre was well known for his deep respect of his intellect and nobody else’s; when he could not get agreement from the other federal parties or several of the provinces, he decided to do things his way. This provoked a major PR backlash. Among other things, a suggestion (taken seriously in some quarters) that Britain not pass the necessary enabling legislation. But, more relevant, the Governor General serious mused about not signing the bill if it passed.

We’ve had long drawn out threads before on this site about “what if the Queen refused to sign a bill?” Basically, the monarch acting in a elitist, heavy-handed way - or the governor general - would guarantee changes would happen to prevent this. (Australians can probably clarify, but when the Australian GG called an election with the request of the prime minister many moons ago, to solve a partisan deadlock - there was serious discussion of his appropriate role, across the country.)

So in a British system, the GG or monarch refusing to comply with the wishes of the government would indicate a dispute so serious, so socially disruptive that the GG, who is supposed to be discrete and above the political fray, feels that they need to put the brakes on the situation. The Queen in the UK has a more serious role - the PM talks to her frequently; and like the GG in Canada, the ultimate power is to push the reset button by calling an election. A secondary one is to refuse legislation.

I’ve never heard of it even threatened, but I imagine that should the GG refuse to sign legislation and the government decides to remove him or her, the GG can go down fighting by calling an election first. Traditionally, the government in power remains as a caretaker after an election has been called. (Not sure if the GG has the power to alter that).

However, should the GG exercise the nuclear option, the next election would essentially be either (a) a referendum of whether the GG exercised power correctly or (b) whether the issue over which the GG fought was right. So the GG treads carefully and stays above any partisan fights and simply sits as a weapon of last resort. “Nuclear option” is indeed a more apt description of the power.

I’d like to hear from UK participants, but in my mind, I like the UK parliament better than the Canadian one for a simple reason - it’s twice as big. A typical Canadian parliament has 338 seats; so a majority is 170 or more. The cabinet is typically a little over 30 ministers, but used to be up to 40. Add in deputies, committee heads, etc. and you probably have about 70 or 80 members who have nice positions courtesy of the government. That leaves about 100 or so who are “backbenchers”. maybe 50 to 75 of those are newbies and others seeking to move up in the next shuffle or next election, leaving maybe 20 to 50 who realize they will never be blessed by the party (Or pissed off the current bosses in some way).

Do the same math for Britain - 600MPs, 350 or so in a majority government, subtract the 150 with positions or wannabees angling for a position, and you still have 150 to 200 MPs who find themselves relegated to permanent backbencher in the ruling party. This is a much more unruly bunch, making it difficult to keep a lid on things. it’s a lot easier for dissidents to organize a revolt to threaten the party brass; meaning the party brass has a deeper reason to listen, they ignore the party rank and file at their peril. (also, IIRC, the UK party MP’s have the power to remove their leader/PM, whereas typically in Canada that must wait for the annual(?) party convention of all members)

Canada, OTOH, the leader of a majority has a reputation in recent times for being pretty arrogant and heavy-handed. “My way or the highway” - Pierre Trudeau, Brian Mulroney, Stephen Harper, and Jean Chretien all were fairly dictatorial. The only real risk for any party is the next election or a backbench revolt.

Backbenchers, of course, have the same concern as anywhere - the next election. Some ridings are as they say “yellow dog ridings” - you could run a yellow dog for the right party and the bitch would get elected. The majority of the swing ridings depend on the popularity of the government, and after too long in power, arrogant leaders tend to lose sight of how their actions play in the boondocks. Unlike the USA, whether a government (executive) survives depends on the number of seats the party wins, and the voters know this. Voting for a different member of parliament can change the Prime Minister, whereas voting for a different party in Congress won’t change who is president.

27

Two points here:

  1. We’ve discussed this before: the Governor General had no power to block the patration process, because it was done by joint resolutions of the House and the Senate, calling on the Queen (i.e., the British government) to enact the necessary legislation to patriate the Canadian Constitution. Resolutions do not require consent from the monarch, so the Governor General could not refuse assent; he was not even asked for it.

  2. More generally, the patriation process demonstrated that the PM’s powers are in a symbiotic relationship with the caucus. A PM who has strong backing from the caucus will have more real political power; a PM who has trouble with caucus will have less political power. In the case of patriation, after the Liberals won the 1980 election, there was a major government caucus meeting where Trudeau laid out the options for patriation, ranging from very minimalist approaches, to the broadest possible one, hitting all of his goals. He made it clear that he favoured the broadest possible approach, but needed caucus support. As the caucus deliberated, one of the Quebec MPs called out: “Allons en Cadillac” - “let’s go for the luxury model”, or “let’s go all in.” That was the mood of the caucus, to support Trudeau to the hilt on his plans for partition. With that strong support, Trudeau was able to push hard for patriation, even to the point of saying he would patriate the Constitution unilaterally - because he knew he had the caucus backing. One academic has described it as the most extreme example of the full powers of the office of Prime Minister being put to a single goal. Trudeau was able to do it because the caucus told him to “go Cadillac”, go for all the marbles.

This is a good point, and highlights the difference in checks and balances between Canada and the US: the electorate itself is a major check, in a much different way than in the US: the incumbency factor for MPs is not very significant.

The Canadian electorate can’t split the difference, and vote for one party for the House and another for the Presidency. We have to decide: do I support the current government, or not? If my MP is a government MP, it really doesn’t matter how good the current MP may be; if I want to vote some other party into government, I have to vote against the current MP, and for the candidate for the party I want. That means that we have a much higher turnover for MPs than is the case in the US Congress. The term limit debate is non-existent in Canada, because of this point. We have term limits, called elections, and a high turnover rate for elected MPs. To my mind, that is a significant check on the political elites.

28

A few quibbles:

No, by convention a PM who loses a no confidence motion resigns.
But no Australian prime minister has ever been defeated in the House of Representatives by an explicit motion of no confidence. The only PM to have lost a vote of no confidence was Fraser.

This is pure party room numbers game. There is nothing of checks & balances involved. Whomever has the majority wins. In all 7 instances where parties have changed their leader and consequently PM via the party room, the government held the confidence of parliament prior to and after the coup.

There has been a burst of colour & movement in the past decade to be sure, but I’d advise you to read up on the early days of Federation for evidence it has never been unthinkable.

There have been 7 (out of 45) federal double dissolution elections: 1914, 1951, 1974, 1975, 1983, 1987 and 2016. Apart from the burst of activity in the Whitlam/Fraser period they aren’t common. Nor have they proved a particularly successful strategy, which is why they aren’t common.

Justices are nominated by the PM usually acting on advise from the Attorney General. They are head of government appointments, not parliamentary appointments.

  • eleventy squillion
29

Precisely, in an exquisitely crafted nut shell.

30

You are correct. Apparently it’s actually a sort of common constitutional doctrine - it even has a name, the “eternity clause.”

31

The fundamental difference between US-like constitutions and UK-like constitutions is that of presidentialism and parliamentarism.

In presidentialism, the Executive is separately elected from the Legislature. In parliamentarism, the Executive’s members are also members of the Legislature, and the Executive is responsible to the Legislature directly.

Presidentialism relies more emphatically on formal veto-points (the traditional checks-and-balances mentality), such as the presidential veto, the two-chamber Congress, the 2/3 veto override, the Senate approval process, the Judiciary oversight, and so on.

Parliamentarism has these, but as the Executive and Legislature overlap somewhat they are more muted and more exceptional. Checks and balances exist but operate within the institutions rather than between them.

The UK has for this reason been described as a constitution with a fusion of powers rather than simply a separation. Another way is to see the Legislature and the Executive as two people with guns against each other’s heads - they have the ability to dissolve the other, if it came to that.

While in presidentialism, many veto-points are just that, as mandated in the constitution, in the UK’s parliamentary system everything, everything is a double-edged sword: the Commons could defeat the Government, but it could result in an early election; the Prime Minister could bully their MPs to support a Bill regardless, but they could risk a major rebellion and lose face or power; the Government could bully the Lords but the Lords might react by denying time for the Bill; the Lords could do that but it might in consequence ignite interest in Lords reform again; and the Queen could veto the Bill but it would invite a constitutional crisis.

Everything has unintended consequences, and the course for every action has to be meticulously mapped out in advance, and potential stumbling blocks addressed. That’s the check-and-balance in the UK.

That’s why those who say the UK’s checks and balances are weak because the Commons never blocks a Government Bill are basically wrong: the Commons doesn’t block a Bill because usually the Government has thought ahead and addressed potential points of failure through dialogue with its own backbench MPs. The Lords won’t block it, because the Government’s done the same there or can demonstrate the Commons will support the Government, and so on.

Formal use of veto points are a much more serious case of breakdown of inter-institutional relations in the UK than they ever would be in the US, where the constitutionally-mandated distance between the President and Congress rules. If the President’s healthcare Bill dies, Trump is still President the next day and the Republicans still run Congress. In the UK, such a result would risk the resignation of the Government and early elections, with every politico’s jobs on the line.

Hope that makes sense, anyway. A good read on it is Juan Linz.

32

Yes, that’s the point I was making upthread about Trudeau’s marihuana legalization bill. It will pass the Commons, not because the Commons has no power, but because before the bill ever gets into the House, Trudeau and his Cabinet have debated the bill internally, and it’s gone through caucus. He wouldn’t have introduced the bill in the Commons unless he was sure the government members of the Commons were going to vote for it.

This is an excellent point. The Commons in the UK and Canada have a power far broader than the Congress has: if they reject a government bill, it means the Prime Minister’s job is on the line. Rejection of a key government bill is a confidence measure, and would trigger an election because the PM has lost the confidence of the House.

That’s a much bigger check on the PM than anything Congress has in ordinary legislation. So that means that the PM only introduces government bills that have broad support in Cabinet and caucus. Sure, the PM can say, “Caucus is divided, so I’m going to decide and the bill comes in. Deal with it.” But a PM who does that on a regular basis will find that his MPs will say, “Yes, I’m voting against a government measure, or just not showing up. Deal with it when the Commons defeats your bill.”

That’s also a good point. Linz makes a very strong case that the US is an outlier amongst presidential-congressional systems, and that such systems only work in the long run if the parties are willing to compromise. The less compromise, the greater the chance the system will fail, possibly catastrophically. Given current trends in Congress, that thesis worries me. See: The Perils of Presidentialism.

33

As we discussed in this thread, presidential-congressional systems don’t really have a good record for endurance. After the US, the next oldest coup-free presidential-congressional country is Costa Rica: coup free since 1948!

34

Well, yes, that’s basically the whole difference between the two systems – the power of parliament is legally unchecked. Moreover, that’s essentially what the American system’s designers were reacting against. It’s why the two systems are different.

Factional conflict within the ruling party is a factor in any system of government, though. A Communist leader who strays too far from orthodoxy risks being denounced by the Party. Referring to this sort of infighting as a check on the system sort of threatens to strip “checks and balances” of any meaning.

35

In the sense of a constitutionally prescribed law, yes: but it is a check and balance within its system, in that it constitutes a limit to the whims of any one actor in the system. The US version favours the potential for gridlock, the Westminster version favours letting a government getting its programme through.

36

More broadly, while the US Constitution favours gridlock, parliamentary systems like the UK work to avoid it, either by making the ground under the feet of the Executive and Legislature ever-shifting sands, but by also having an ultimate arbiter when a breakdown occurs - snap elections or a new government.

37

I’m not even sure when the last time the reigning Monarch effectively said “Lol no” to an Act of Parliament in the UK (or anywhere else in the Commonwealth where they’re still head of state, for that matter).

One would have thought the Fox Hunting Ban would have been the occasion when the Queen said “Regretfully, one declines to sign this” - but it didn’t happen.

38

Well, yes, that’s basically the whole difference between the two systems – the power of parliament is legally unchecked. Moreover, that’s essentially what the American system’s designers were reacting against. It’s why the two systems are different.
[/QUOTE]

I"m not referring to parliamentary supremacy (which isn’t the case in Canada anyway; the federal Parliament is not “legally unchecked” - there are clear limitations on its legislative powers).

I’m referring to the powers of the Commons in each system to kick out the government on a simple vote on ordinary legislation. In a parliamentary system, the executive serves only for so long as it has the confidence of the Commons (lower house). That is a power which the Congress does not have with regards to the President.

I’m afraid I’m simply not following your argument here. :confused:

In a parliamentary system, the ultimate checks on the executive are the power of the government MPs to defeat the Prime Minister, and the power of the lower House to defeat the Government.

That’s what Maggie Thatcher found out, as did Jean Chrétien, as well as a few recent Australian Prime Ministers, like Rudd and Gilliard, who both got “spilled”. All of them lost power because they ceased to have the confidence of their caucus.

There’s also cases where the government is defeated in the House on a confidence measure, such as the fall of the Clark government in 1979 in Canada, when the Commons rejected the budget, triggering an election.

The power of the members of the legislative branch to kick out the Prime Minister is the ultimate check and balance. A Prime Minister has to maintain strong support in the caucus of government MPs, and the government has to maintain the command of a majority in the House to stay in power. I’m afraid I don’t see why you discount those requirements as not being checks or balances on the Prime Minister and the government of the day.

39

The Scottish Militia Bill of 1708, Assent withheld by Queen Anne on the advice of her ministers for fear that the proposed militia created would be disloyal.

40

Speaking of which: UK Prime Minister Theresa May to seek early election.

http://www.cnn.com/2017/04/18/europe/uk-snap-election-theresa-may/index.html